Citation Nr: 0521263
Decision Date: 08/05/05 Archive Date: 08/17/05
DOCKET NO. 03-15 818 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to a compensable evaluation for bilateral
hearing loss disability.
2. Entitlement to a compensable evaluation for tinea
versicolor.
ATTORNEY FOR THE BOARD
C. Moore, Associate Counsel
INTRODUCTION
The veteran had active service from October 1992 to October
1996.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a February 2002 rating decision of the
Atlanta, Georgia Regional Office (RO) of the Department of
Veterans Affairs (VA).
The issues on appeal were previously before the Board in
April 2004 and December 2004, at which time the case was
remanded for additional development.
FINDINGS OF FACT
1. Throughout the rating period on appeal, the veteran has
demonstrated Level I hearing in both the right and left ear.
2. Throughout the rating period on appeal, the veteran's
service-connected tinea versicolor has not exhibited any
objective symptoms.
CONCLUSIONS OF LAW
1. The criteria for an initial compensable evaluation for
bilateral hearing loss disability have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 2002). 38 C.F.R. § 4.85,
Diagnostic Code 6100 (2004).
2. The criteria for a compensable evaluation for tinea
versicolor have not been met. 38 U.S.C.A. § 1155, 5107 (West
2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code
7817 (Prior to and from August 30, 2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veteran's Claims and Assistance Act
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act (VCAA). This new law
eliminates the concept of a well-grounded claim, and
redefines the obligations of the VA with respect to the
duties to notify and to assist claimants in the development
of their claims. First, the VA has a duty to notify the
appellant and his representative, if represented, of any
information and evidence needed to substantiate and complete
a claim. See 38 U.S.C.A. §§ 5102 and 5103 (West. 2002). In
this regard, VA will inform the appellant of which
information and evidence, if any, that he is to provide and
which information and evidence, if any, VA will attempt to
obtain on his behalf. VA will also request that the
appellant provide any evidence in his possession that
pertains to the claim. Second, the VA has a duty to assist
the appellant in obtaining evidence necessary to substantiate
the claim. See 38 U.S.C.A. § 5103A (West 2002).
Notice
With regard to the issue of entitlement to an increased
evaluation for bilateral hearing loss disability and
entitlement to an increased evaluation for tinea versicolor,
the Board notes that a VA letter issued in April 2004
apprised the appellant of the information and evidence
necessary to substantiate his claims, which information and
evidence, if any, that he is to provide, and which
information and evidence, if any, VA will attempt to obtain
on his behalf. He was also requested to provide any evidence
in his possession that pertains to the claims. As such, the
Board finds that the correspondence satisfied VA's duty to
notify the veteran, as required by Quartuccio v. Principi, 16
Vet. App. 183 (2002), 38 U.S.C.A. § 5103 (West 2002), and 38
C.F.R. § 3.159 (2004).
It is also noted that a recent case of the United States
Court of Appeals for Veterans Claims (Court) held that
compliance with 38 U.S.C.A. § 5103 required that the VCAA
notice requirement be accomplished prior to an initial
unfavorable determination by the agency of original
jurisdiction. See Pelegrini v. Principi, 18 Vet. App. 112
(2004) (Pelegrini II). However, in the present case, the
matters on appeal were initially adjudicated prior to
issuance of proper VCAA notification. Nevertheless, the
Court in Pelegrini II noted that such requirement did not
render a rating decision promulgated prior to providing the
veteran full VCAA notice void ab initio, which in turn would
nullify the notice of disagreement and substantive appeal
filed by the veteran. In other words, Pelegrini II
specifically noted that there was no requirement that the
entire rating process be reinitiated from the very beginning.
Rather, the claimant should be provided VCAA notice and an
appropriate amount of time to respond and proper subsequent
VA process.
Because the VCAA notice in this case was not provided to the
veteran prior to the initial AOJ adjudication, the timing of
the notice does not comply with the express requirements of
the law as found by the Court in Pelegrini II. While the
Court did not specify how the Secretary can properly cure a
defect in the timing of the notice, it did leave open the
possibility that a notice error of this kind may be non-
prejudicial to a claimant. There is no basis for concluding
that harmful error occurs simply because a claimant receives
VCAA notice after an initial adverse adjudication.
In reviewing AOJ determinations on appeal, the Board is
required to review the evidence of record on a de novo basis
and without providing any deference to the AOJ's decision.
As provided by 38 U.S.C. § 7104(a), all questions in a matter
which under 38 U.S.C. § 511(a) are subject to decision by the
Secretary shall be subject to one review on appeal to the
Secretary, and such final decisions are made by the Board.
Because the Board makes the final decision on behalf of the
Secretary with respect to claims for veterans benefits, it is
entirely appropriate for the Board to consider whether the
failure to provide a pre-AOJ initial adjudication constitutes
harmless error, especially since an AOJ determination that is
"affirmed" by the Board is subsumed by the appellate
decision and becomes the single and sole decision of the
Secretary in the matter under consideration. See 38 C.F.R. §
20.1104. Further, a claimant is not compelled under 38
U.S.C. § 5108 to proffer new and material evidence simply
because an AOJ decision is appealed to the Board. Rather, it
is only after a decision of either the AOJ or the Board
becomes final that a claimant has to surmount the reopening
hurdle.
All the VCAA requires is that the duty to notify is
satisfied, and that claimants be given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38
C.F.R. § 20.1102 (harmless error).
Here, the Board finds that any defect with respect to the
timing of the VCAA notice requirement was harmless error.
While the notice provided to the veteran in April 2004 was
not given prior to the first AOJ adjudication of the claims,
the notice was provided by the AOJ prior to the transfer and
certification of his case to the Board, and the content of
the notice fully complied with the requirements of 38 U.S.C.
§ 5103(a) and 38 C.F.R. § 3.159(b). The appellant has been
provided with every opportunity to submit evidence and
argument in support of his claims, and to respond to VA
notices. Therefore, not withstanding Pelegrini II, to decide
the appeal would not be prejudicial error to him.
The Court in Pelegrini II also held, in part, that a VCAA
notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. §
3.159(b) must: (1) inform the claimant about the information
and evidence not of record that is necessary to substantiate
the claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; (3) inform the
claimant about the information and evidence the claimant is
expected to provide; and (4) request or tell the claimant to
provide any evidence in the claimant's possession that
pertains to the claim. This new "fourth element" of the
notice requirement comes from the language of 38 C.F.R. §
3.159(b)(1). See VAOPGCPREC 01-2004. As discussed above,
the Board has found that the appellant was provided every
opportunity to identify and submit evidence in support of his
claims.
All the VCAA requires is that the duty to notify is
satisfied, and that claimants are given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38
C.F.R. § 20.1102 (harmless error). In this case, because
each of the four content requirements of a VCAA notice has
been fully satisfied, any deficiency as to the timing of VCAA
notice to the appellant is harmless error.
Duty to assist
With regard to the duty to assist, the record contains the
veteran's service medical records, as well as reports of VA
examination. The veteran has been afforded the opportunity
for a personal hearing on appeal. The Board has carefully
reviewed the veteran's statements and concludes that he has
not identified any further evidence not already of record.
The Board has also perused the medical records for references
to additional treatment reports not of record, but has found
nothing to suggest that there is any outstanding evidence
with respect to the veteran's claims. Based on the
foregoing, the Board finds that all relevant facts have been
properly and sufficiently developed in this appeal and no
further development is required to comply with the duty to
assist the veteran in developing the facts pertinent to his
claims. Essentially, all available evidence that could
substantiate the claims has been obtained.
Factual Background
On audiologic evaluation in March 2001, relevant pure tone
thresholds, in decibels, were as follows:
HERTZ
1000
2000
3000
4000
RIGHT
20
10
20
15
LEFT
20
10
15
15
Speech audiometry revealed speech recognition ability of 96
percent in both the right and left ear.
In March 2001, the veteran also underwent examination of his
skin. The veteran complained of a rash on his chest and
upper back, manifested by cracking and dry skin, which was
worse in the summer. Physical examination revealed no
significant skin lesions, except for yellow crusting in the
palmar creases and around the nails of his hands, with
exfoliation and crusting on the soles of his feet,
bilaterally, with punctuate lesions on the soles of his feet,
bilaterally. The examiner diagnosed the veteran with tinea
versicolor, but noted that the veteran was currently without
signs of the tinea versicolor. However, the examiner again
noted that the veteran indicated that it was worse in the
summer.
On VA audiologic evaluation in March 2005, pure tone
thresholds, in decibels, were as follows:
HERTZ
1000
2000
3000
4000
RIGHT
10
15
15
20
LEFT
10
10
10
20
Speech audiometry revealed speech recognition ability of 96
percent in the right ear and of 100 percent in the left ear.
The examiner reported that the veteran had normal hearing and
middle ear function, bilaterally.
In March 2005, the veteran underwent a skin diseases VA
compensation and pension examination. The veteran reported
that the light areas located on his chest and upper back
began in 1994. He further indicated that the condition was
last treated in 1996 and that he last noticed the rash in the
late 1990s. The veteran also stated that he was not on any
current treatment for the prior rash. The examiner reported
that the veteran had not had any skin or systemic conditions,
no history of malignant neoplasms, or any benign neoplasms.
She also noted that the veteran did not have a history of
acne, scarring, or disfigurement. An examination of the
veteran's skin revealed that the veteran's chest and back
were clear of any evidence of the prior skin condition that
was noted to be tinea versicolor. The examiner also reported
that the veteran's left hand was very dry and scaly on the
palmar side with yellow crusting. There were scattered
hyperpigmented areas. The examiner diagnosed dyshidrotic
eczema involving the left hand. The examiner also diagnosed
the veteran with tinea versicolor, with no current evidence,
and indicated that zero percent of the exposed areas and zero
percent of the entire body area were affected by this
condition.
Analysis and Criteria
Increased Rating Regulations- In General
Under the applicable criteria, disability evaluations are
determined by the application of a schedule of ratings that
is based on average impairment of earning capacity. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2004).
Separate diagnostic codes identify the various disabilities.
The VA has a duty to acknowledge and consider all regulations
that are potentially applicable through the assertions and
issues raised in the record, and to explain the reasons and
bases for its conclusion. Schafrath v. Derwinski, 1 Vet.
App. 589 (1991).
The standard of review for cases before the Board is as
follows: when there is an approximate balance of evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2004).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
stated that "a (claimant) need only demonstrate that there is
an 'approximate balance of positive and negative evidence' in
order to prevail."
Where there is a question as to which of two evaluations
should be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (2004).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although
the regulations do not give past medical reports precedence
over current findings, the Board is to consider the veteran's
medical history in determining the applicability of a higher
rating for the entire period in which the appeal has been
pending. Id; Powell v. West, 13 Vet. App. 31, 35 (1999).
The rating schedule may not be employed as a vehicle for
compensating a claimant twice or more for the same
symptomology; such a result would overcompensate him or her
for the actual impairment of earning capacity. See 38 C.F.R.
§ 4.14 (2004); See Esteban v. Brown, 6 Vet. App 259 (1994).
1. Bilateral Hearing Loss
Under the applicable criteria, disability evaluations are
determined by the application of a schedule of ratings that
is based on average impairment of earning capacity. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2004).
Separate diagnostic codes identify the various disabilities.
The VA has a duty to acknowledge and consider all regulations
that are potentially applicable through the assertions and
issues raised in the record, and to explain the reasons and
bases for its conclusion. Schafrath v. Derwinski, 1 Vet.
App. 589 (1991).
The standard of review for cases before the Board is as
follows: when there is an approximate balance of evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2004).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
stated that "a (claimant) need only demonstrate that there is
an 'approximate balance of positive and negative evidence' in
order to prevail."
The severity of hearing loss disability is determined for VA
rating purposes by the application of criteria set forth in
38 C.F.R. § 4.87 of VA's Schedule for Rating Disabilities.
Under, these criteria, evaluations of bilateral defective
hearing range from noncompensable to 100 percent based on
organic impairment of hearing acuity as measured by the
results of controlled speech discrimination tests together
with the average pure tone threshold level as measured by
pure tone audiometry tests in the frequencies of 1,000,
2,000, 3,000 and 4,000 Hertz. The degree of disability for
bilateral service-connected defective hearing is ascertained
by the application of the rating schedule, which establishes
11 auditory acuity levels, ranging from Level I (for
essentially normal acuity) through Level XI (for profound
deafness). See 38 C.F.R. § 4.85, Diagnostic Code 6100 (2004).
In addition, 38 C.F.R. § 4.86 (2004) applies to exceptional
patterns of hearing impairment. Under its provisions, when
the puretone threshold at each of the four specified
frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels
or more, the rating specialist will determine the Roman
Numeral designation for hearing impairment from either Table
VI or Table VIa, whichever results in the higher numeral.
Each ear will be evaluated separately. 38 C.F.R. § 4.86(a).
When the puretone threshold is 30 decibels or less at 1000
Hertz, and 70 decibels or more at 2000 Hertz, the rating
specialist will determine the Roman numeral designation for
hearing impairment from either Table VI or Table VIa,
whichever results in the higher numeral. That numeral will
then be elevated to the next higher Roman numeral. Each ear
will be evaluated separately. 38 C.F.R. § 4.86(b).
At the outset, the Board notes that the veteran was initially
granted a noncompensable evaluation for his bilateral hearing
loss disability from October 14, 1996. He filed his claim
for an increased rating for his bilateral hearing loss
disability on January 2, 2001.
In this case, the results of the VA audiometric examinations
conducted in March 2001 and March 2005 fail to demonstrate
that a compensable evaluation is warranted for the veteran's
service-connected bilateral hearing loss disability. In this
regard, under the criteria set forth in the Rating Schedule,
the results of these audiometric evaluations reveal that the
veteran has Level I hearing in the right and left ear. Such
findings correspond to a noncompensable (0 percent)
evaluation. Also, such findings do not represent an
exceptional pattern of hearing impairment as contemplated in
the provisions of 38 C.F.R. § 4.86(a) and/or (b) (2004).
Thus, although the veteran asserts that his hearing loss has
increased in severity, the Board concludes that the medical
findings on examination are of greater probative value than
the veteran's statements regarding the severity of his
bilateral hearing loss disability. Accordingly, the Board
finds that the weight of the evidence is against the
veteran's claim for a compensable evaluation for bilateral
hearing loss disability.
2. Tinea Versicolor
At the outset, the Board notes that the veteran was initially
granted a noncompensable evaluation for his tinea versicolor
from October 14, 1996. He filed his claim for an increased
rating for his tinea versicolor disability on January 2,
2001.
The veteran's tinea versicolor has been rated by the RO by
analogy to eczema under the criteria set forth in Diagnostic
Code 7806. By regulatory amendment effective August 30,
2002, substantive changes were made to the schedular criteria
for evaluation of skin diseases, as set forth in 38 C.F.R. §
4.118, Diagnostic Codes 7800-7833. See 67 Fed. Reg. 49,590-
49,599 (July 31, 2002). The RO has considered both versions
of the criteria with respect to this claim; thus there is no
prejudice to the veteran in the Board's consideration of both
the old and new criteria. See Bernard v. Brown, 4 Vet. App.
384 (1993).
In Karnas v. Derwinski, 1 Vet. App. 308 (1991), the United
States Court of Appeals for Veterans Claims (Court) held
that, where a law or regulation changes during the pendency
of a claim or appeal, the Board must apply the version of the
law that is more favorable to the claimant. In VAOPGCPREC 7-
2003 (Nov. 19, 2003), the VA General Counsel held that the
United States Court of Appeals for the Federal Circuit
(Federal Circuit) in Kuzma v. Principi, 341 F.3d 1327 (Fed.
Cir.2003), expressly overruled the Court's holding in Karnas
to the extent that decision allowed the retroactive
application of a statute or regulation, where the statute or
regulation did not expressly provide for retroactive
application. The Federal Circuit's decisions leading up to
the decision in Kuzma clearly show that it was the intent of
the Federal Circuit to overrule the holding in Karnas as it
might be applied to any change in a statute or regulation.
See Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); see
also Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002).
Under the rating criteria applicable for eczema prior to
August 30, 2002, a noncompensable disability rating is
warranted when there is slight, if any, exfoliation,
exudation or itching, if on a nonexposed surface or small
area. A 10 percent rating is warranted when there is eczema
with exfoliation, exudation, or itching, if involving an
exposed area or extensive area. A 30 percent rating is
warranted when there is eczema with exudation or itching
constant, extensive lesions, or marked disfigurement. A 50
percent rating is warranted if there is eczema with
ulceration or extensive exfoliation or crusting, and systemic
or nervous manifestations, or exceptionally repugnant. 38
C.F.R. § 4.118, Diagnostic Code 7806 (prior to August 30,
2002).
Under the revised rating criteria for Diagnostic Code 7806,
for dermatitis or eczema, a 10 percent rating is assigned
where at least 5 percent, but less than 20 percent, of the
entire body is affected, or at least 5 percent, but less than
20 percent of exposed areas are affected, or; intermittent
systemic therapy such as corticosteroids or other
immunosuppressive drugs is required for a total duration of
less than six weeks during the twelve month period. A 30
percent rating is assigned where 20 to 40 percent of the
entire body or 20 to 40 percent of exposed areas are
affected, or; systemic therapy such as corticosteroids or
other immunosuppressive drugs is required for a total
duration of six weeks or more, but not constantly, during a
twelve month period. The highest rating of 60 percent is
assigned when more than 40 percent of the entire body or more
than 40 percent of exposed areas are affected, or; constant
or near-constant systemic therapy such as corticosteroids or
other immunosuppressive drugs is required during a twelve
month period. 38 C.F.R. § 4.118, Diagnostic Code 7806
(effective August 30, 2002).
When the evidence in this case is considered under the old
schedular criteria of Diagnostic Code 7806, the Board finds
that the evidence of record demonstrates that the veteran is
not entitled to a compensable evaluation for his tinea
versicolor. On examination in March 2001, the examiner
reported that the veteran's tinea versicolor did not display
any symptoms. Therefore, the Board finds that the veteran
has not met the criteria for a compensable evaluation under
the old schedular criteria of Diagnostic Code 7806.
When the evidence is considered under the revised rating
criteria of Diagnostic Code 7806, the Board is once again of
the opinion that the veteran is not entitled to a compensable
evaluation for tinea versicolor. The available evidence
associated with the claims file does not indicate that an
increase is warranted under the revised rating criteria. As
such, the Board does not find that at least 5 percent, but
less than 20 percent of the veteran's entire body, or at
least 5 percent but less than 20 percent of exposed areas of
the veteran's body are affected. Additionally, the Board
observes that the veteran has not required systemic therapy
such as corticosteroids or other immunosuppressive drugs for
a total duration of six weeks at all during the past 12 month
period. In fact, on examination in March 2005, the examiner
reported that the veteran was not under current treatment for
his rash, which last manifest itself in the late 1990s, that
zero percent of the exposed areas were affected by the tinea
versicolor, and that zero percent of the entire body area was
affected by the condition. Therefore, the Board finds that
the veteran is not entitled to an increased evaluation under
the rating criteria as in effect from August 30, 2002.
Further, the Board has considered the application of other
Diagnostic Codes, including Diagnostic Codes 7800, 7801,
7802, 7803, 7804, and 7805, as in effect both prior to, and
from, August 30 2002. However, the Board has reviewed the
pertinent medical evidence as contained in the veteran's
claims file, and concludes that the criteria for a
compensable rating for scars or disfigurement of the head,
face, or neck are simply not met. In this regard, the Board
notes that none of the available medical evidence indicates
that the veteran experienced scaring or disfigurement as a
result of his tinea versicolor. Therefore, the Board
concludes that veteran has not met the criteria for a
compensable evaluation under any other Diagnostic Code.
In conclusion, the Board finds that the preponderance of the
evidence is against the veteran's claim for an increased
evaluation for tinea versicolor, and the claim must be
denied.
Extraschedular Consideration
The Board is required to address the issue of entitlement to
an extraschedular rating under 38 C.F.R. § 3.321 only in
cases where the issue is expressly raised by the claimant or
the record before the Board contains evidence of
"exceptional or unusual" circumstances indicating that the
rating schedule may be inadequate to compensate for the
average impairment of earning capacity due to the disability.
See VA O.G.C. Prec. Op. 6-96 (August 16, 1996). In this
case, consideration of an extraschedular rating has not been
expressly raised. Further, the record before the Board does
not contain evidence of "exceptional or unusual"
circumstances that would preclude the use of the regular
rating schedule.
ORDER
1. Entitlement to a compensable evaluation for bilateral
hearing loss disability is denied.
2. Entitlement to a compensable evaluation for tinea
versicolor is denied.
____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs